Eleanor Finch
Israel does not have a formal written constitution. Instead, it has a set of basic laws that serve as its constitutional framework. The first of these was the Transition Law, passed by the Constituent Assembly, which reconstituted itself as the First Knesset. The Knesset adopted a compromise, transferring the powers of the Constituent Assembly to subsequent Knessets and introducing the idea of a constitution by chapters instead of one formal written document. This approach, known as the Harari Resolution, has resulted in a series of Basic Laws that collectively form the basis of Israel's legal system. The Supreme Court of Israel has also played a role in interpreting and upholding these laws, with Chief Justice Aharon Barak declaring that the Basic Laws are supreme over ordinary legislation. The absence of a formal constitution in Israel has been a source of debate, with some arguing that it allows for ambiguity in the country's political system and the blending of liberal democracy and Zionism.
| Characteristics | Values |
|---|---|
| Israel's constitution | To protect the basic liberties and rights of all its citizens |
| To safeguard the collective rights of minority groups from the threat of a tyranny of the majority | |
| To formally establish the dual nature of Israel as Jewish and democratic | |
| To emphasize the commitment of its citizens to both democratic and Jewish values | |
| To entrench Israel's fundamental values and commitments to human rights | |
| Basic Law | To grant the Supreme Court the power to strike down new legislation that contradicted any basic laws |
| To prevent family reunification of Israeli citizens and Palestinians | |
| To ensure that political participation is open to all and that no minorities are marginalized or excluded |
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What You'll Learn
Israel's Basic Laws
Israel does not have a formal, unitary, written constitution. Instead, it has a set of Basic Laws that act as a de facto constitution. These Basic Laws were intended to be draft chapters of a future Israeli constitution, which has been postponed since 1950.
The Basic Laws deal with government arrangements and human rights, including the protection of the fundamental liberties and rights of all citizens and the safeguarding of the collective rights of minority groups. They also cover freedom of expression, freedom of the press, and freedom of religion.
The absence of a formal constitution in Israel has been a source of debate, with various bodies calling for its enactment as a single document. The Israeli Declaration of Independence stated that a formal constitution would be formulated and adopted by 1 October 1948. However, this deadline was missed due to the war between the new state and its Arab neighbors, and subsequent disagreements between different groups in Israeli society.
In 1950, the First Knesset, or Constituent Assembly, made the Harari Decision, opting to legislate a constitution chapter by chapter rather than as a single document. This decision was influenced by the opposition of David Ben-Gurion, Prime Minister at the time, who believed that a formal written constitution would allow the Israeli Supreme Court to overrule his socialist policies.
The Basic Laws have been interpreted in different ways. While some, like Chief Justice Aharon Barak, championed an activist interpretation, declaring that the Basic Laws took precedence over ordinary legislation, others, like his colleague Justice Mishael Cheshin, disagreed with this approach.
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The Zionist-apartheid state debate
Zionism, a form of Jewish nationalism, is the primary ideology that drove the establishment of Israel. Since its establishment in 1948, Israel has pursued a policy of establishing and then maintaining a Jewish demographic majority, maximising control over land and resources to benefit Jewish Israelis. This has resulted in the dispossession and displacement of Palestinians from their homes, the destruction of ancient villages and olive groves, and families being separated by checkpoints and walls.
The absence of a formal constitution in Israel has been a point of contention, with critics arguing that it allows the state to avoid legally committing to principles of equality and non-discrimination. Some argue that a formal constitution would either have to grant full equality before the law or legally establish an apartheid state, and the first option is not compatible with Zionism.
The term "anti-Zionism" refers to criticism of the current policies of the Israeli state or moral, ethical, or religious criticism of the idea of a Jewish nation-state. There is a diverse range of anti-Zionist Jews, from religious and secular progressives who view anti-Zionism as an anti-racist stance, to ultra-Orthodox Jews who oppose Jewish dominion until the time of the Messiah. Many Palestinians take anti-Zionist positions due to the current and historical practices of the Israeli state, and criticism of Zionism should not be conflated with antisemitism.
The debate surrounding Zionism and apartheid centres on whether Israel's policies and practices amount to a system of institutionalized racial oppression and domination over Palestinians. Amnesty International has characterised Israel's treatment of Palestinians as "apartheid", citing deliberate unequal treatment, discriminatory allocation of state resources, and a policy of segregation, dispossession, and exclusion across all territories under its control.
In contrast, some argue that the existence of Palestinian citizens of Israel proves that it is not an apartheid state. They claim that Israel is fine with having some Palestinian citizens as long as they are a small minority in the political system. Additionally, some Jewish groups have accused anti-Zionist organisations of spreading disinformation and promoting a "Soviet message" about Israel.
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The German government's response to Israel-Palestine conflict
Germany has historically maintained a semblance of impartiality in its public diplomacy towards Israel and Palestine, but its response to the 2023 Hamas-led attacks against Israel on October 7 has been largely one-sided in support of Israel. German Chancellor Olaf Scholz stated that "there is only one place for Germany at this time, and that is by Israel's side." Germany's history and responsibility arising from the Holocaust have been cited as reasons for the country's perpetual duty to stand up for Israel's existence and security.
Germany has provided comprehensive support to UN organizations on the ground and is one of the largest donors of humanitarian aid to the Palestinian territories. However, it has also been criticized for its crackdown on pro-Palestinian speech and public support for the Palestinian cause, with authorities accused of jeopardizing fundamental freedoms. Germany has also abstained from votes in the UN General Assembly calling for a ceasefire in the Middle East and rejected allegations of Israel committing genocide in Gaza.
Germany's arms exports to Israel have surged in recent years, with German government officials revealing that 185 out of 218 licenses for arms exports were approved during Israel's 2023 offensive. Germany accounted for 30% of Israel's arms imports in recent years, second only to the United States. This has led to concerns about Germany's impartiality and the potential negative consequences for its diplomacy and influence in the Middle East and the Global South.
Germany's response to the Israel-Palestine conflict has been shaped by social and historical factors, including the country's responsibility to Israel as the legal and moral representative of Jews victimized by the Nazi regime. Germany's support for Israel has also been influenced by the perception of Israel as a liberal regime with democratic norms and guaranteed social rights. At the same time, Germany maintains strategic commitments to the Palestinian Authority and is a major donor to humanitarian aid efforts in the Palestinian territories.
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The ambiguity of liberal democracy and Zionism
The relationship between liberal democracy and Zionism is a complex and often ambiguous one. On the one hand, liberal democracy espouses values such as equality before the law, independent branches of government, and the protection of minority rights. On the other hand, Zionism, as a movement for the establishment and protection of a Jewish homeland in Israel, has been associated with nationalist and colonialist ideologies that can conflict with these democratic ideals.
The ambiguity arises when trying to reconcile the goals of Zionism with the values of liberal democracy. For example, while liberal democracy promotes equal rights for all citizens, Zionism, in practice, has often resulted in the marginalization and dispossession of non-Jewish populations, particularly Palestinians. This tension is evident in the ongoing conflict between Israelis and Palestinians, where Zionist ideology has been accused of justifying the expansion of Jewish settlements and the eviction of Palestinian residents in East Jerusalem.
Furthermore, the absence of a formal constitution in Israel contributes to the ambiguity. While Israel has a set of "'basic laws' that function similarly to a constitution, the lack of a comprehensive document has led to ongoing debates about the country's fundamental principles and the protection of minority rights. This ambiguity allows for a degree of flexibility in interpreting and shaping the country's legal framework, which some argue benefits Israel's soft power and enables it to navigate complex political and social dynamics.
However, this ambiguity also has consequences. Without a clear constitution, there is a risk of short-term political impulses compromising the fundamental values and human rights that liberal democracy and Zionism strive for. This ambiguity can also make it challenging to hold Israel accountable to specific principles, as the lack of a formal constitution provides a degree of legal and ideological flexibility.
Ultimately, the ambiguity of liberal democracy and Zionism in the context of Israel's political and social landscape is a multifaceted issue. It involves navigating complex historical, cultural, and ideological factors. While this ambiguity can provide opportunities for adaptation and compromise, it also presents challenges in ensuring equal rights, social cohesion, and a stable framework for the protection of all citizens' rights.
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The constitutional process
The first act of the Constituent Assembly, which reconstituted itself as the "First Knesset," was to pass the "Transition Law." This law established the Assembly as the Legislature of the State of Israel. The Knesset then adopted a compromise, transferring the powers of the Constituent Assembly to subsequent Knessets and introducing the idea of creating a constitution "by chapters" rather than one formal written document. This compromise, known as the "Harari Resolution," instructed the Constitution, Law and Justice Committee to prepare a draft state constitution with each chapter constituting a separate Basic Law.
The Basic Laws of Israel are designed to protect the fundamental rights and liberties of all citizens and to safeguard the collective rights of minority groups. They are also meant to entrench Israel's commitment to human rights and democratic values. However, the process of drafting these laws has been protracted and controversial.
In May 2003, the Constitution, Law, and Justice Committee of the Knesset initiated the "Constitution by Broad Consensus Project," which aimed to write a constitution for the State of Israel. This project resulted in the creation of more Basic Laws, but a formal constitution has yet to be established.
The lack of a formal constitution in Israel has been a source of contention, with some arguing that it is necessary to ensure equal rights and due process for all citizens. Others have suggested that a formal constitution would either have to grant full equality before the law or legally establish an apartheid state, which is incompatible with Zionism.
Despite the absence of a formal constitution, Israel's Supreme Court has played a significant role in interpreting and enforcing the Basic Laws. In a landmark decision in 1995, Chief Justice Aharon Barak declared that the Basic Laws were supreme over ordinary legislation and established the practice of judicial review. This decision put the Basic Laws on par with a constitution and granted the Supreme Court the power to strike down new legislation that contradicted them.
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Frequently asked questions
No, Israel does not have a formal written constitution. Instead, it has a set of Basic Laws that are considered chapters of a future constitution.
The Basic Laws are a set of laws that are considered to be part of Israel's unwritten constitution. They include laws such as the "Transition Law", which reconstituted the Constituent Assembly as the "First Knesset", and the "Nation-State Bill", which declares that Israel is a Jewish state.
There are a few reasons why Israel might not have a formal written constitution. One reason could be the ambiguity of blending liberal democracy and Zionism, which benefits Israel's soft power. Another reason could be the lack of consensus on the long-term goals and objectives of the State of Israel. Additionally, there has been a protracted debate between those favoring immediate enactment of a constitution and those who believe there should be no constitution or that the time is not yet right.
Not having a formal written constitution may contribute to social rifts and tensions, as well as feelings of hostility and alienation between different sectors of Israeli society. It may also impact the protection of the basic liberties and rights of citizens, particularly minority groups such as Arab Israelis.
